An Information Source for Mediation, Arbitration and Family/Divorce Law in NJ.

Entries Tagged as 'Lawsuits'

New Jersey children suing their parents for college costs have been in the news frequently in recent months. Many parents are unaware of the law in New Jersey which derives from a 1982 NJ Supreme Court case called Newburgh v. Arrigo, 88 N.J. 529 (1982). The case creates factors a court should look at when determining whether the divorcing parents of a child are responsible for paying for college. Here are pertinent quotes from the decision regarding the reasoning behind divorcing parents funding college:

In general, emancipation is the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child.

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Generally parents are not under a duty to support children after the age of majority. Nonetheless, in appropriate circumstances, the privilege of parenthood carries with it the duty to assure a necessary education for children. Frequently, the issue of that duty arises in the context of a divorce or separation proceeding where a child, after attaining majority, seeks contribution from a non-custodial parent for the cost of a college education. In those cases, courts have treated “necessary education” as a flexible concept that can vary in different circumstances.

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In the past, a college education was reserved for the elite, but the vital impulse of egalitarianism has inspired the creation of a wide variety of educational institutions that provide post-secondary education for practically everyone.

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Some parents cannot pay, some can pay in part, and still others can pay the entire cost of higher education for their children. In general, financially capable parents should contribute to the higher education of children who are qualified students. In appropriate circumstances, parental responsibility includes the duty to assure children of a college and even of a postgraduate education such as law school.

The case most recently in the news involves Caitlyn Ricci suing her divorced parents to pay for her college expenses. The court awarded her payment for community college and she now heads to Temple University. Payments for Temple’s $16,000 costs were not decided by the court. This case is heartbreaking not only in that a child is suing her parents but that the parents are also at odds with the grandparents who are supporting Caitlyn. I hope for all involved, they are able to work out their differences. Life is too short. Perhaps therapy or family mediation would be helpful to the Riccis.

The other notable recent case was the Canning matter. Rachel Canning sued her still married parents for college expenses after she moved out of the parent’s house. The court denied her claim for immediate assistance. She later reconciled with her parents, dropped her lawsuit and is attending college on scholarship.

These are issues we discuss during a divorce mediation, when appropriate. If you want to consider using mediation to save time and money during your divorce, please contact me.

Much of what happens in a lawsuit is gamesmanship, especially during the discovery phase. Discovery comprises much of the pre-trial phase of litigation where each party seeks to understand what the other side(s) know, what documents they have pertaining to the litigation, what they will say under oath, etc. Discovery can be expensive. A Rand Corporation study found that 80% of litigation costs are incurred in the discovery phase. Since less than 2% of cases filed actually go to trial, discovery ends up being THE cost of litigation for the vast majority of cases. As a result, gamesmanship during discovery can be used as strategic or tactical tool — or abused — depending on how one views it. Some examples:

Asking for voluminous or tangentially relevant documents

Taking depositions from an excessive number of people

Repeated last minute canceling of depositions

Asking inappropriate questions in an interrogatory

Refusing to provide requested documents

Refusing to answer interrogatories

Filing a lot of motions with the court (motions to dismiss, for summary judgment, to compel, etc.)

The goal of the gamesmanship is to create addition expense or agita for the other side, causing them to want to abandon their case or to settle on more favorable terms. Unfortunately, the usual result is a lose-lose scenario where it creates the same problems for both sides.

In a recent case in California, the court in Clement v. Alegre , 09 C.D.O.S. 12126 imposed a monetary sanction of more than $6600 on one side for abusing the discovery process. In this case, the plaintiff had objected to answering 20 of 23 interrogatories. A retired judge acting as discovery referee noted that plaintiff’s objections were “unreasonable, evasive, lacking in legal merit and without justification” and he imposed the monetary sanctions. Justice J. Anthony Kline for a unanimous appeals panel wrote in salient parts:

We have no difficulty in affirming the trial court’s determination that in this case plaintiffs forced to court a dispute that was not ‘genuine’.

Indeed the record here strongly indicates that the purpose of plaintiffs’ objections was to delay discovery, to require defendants to incur potentially significant costs in redrafting interrogatories that were clear and that did not exceed numerical limits, and to generally obstruct the self-executing process of discovery.

Clearly this was ‘game-playing’ and supports the referee’s findings and the sanctions award.

Kline further chastised both sides for failing to mount any “serious effort at negotiation and informal resolution” and used the ruling to remind all lawyers to avoid a similar outcome.

Mediation can help avoid all of these discovery problems. Discovery is a means to an end — not the end. The end is resolving your dispute. Mediation helps get resolutions on your terms. Mediation seeks to find win-win solutions. If you’re looking for a resolution to your dispute, call me at 732-963-2299 or contact me online.

The second are transactional costs. These are the costs for the attorney, court costs and fees (filings, motions, etc.), experts costs, costs for a court reporter in depositions, etc. In most cases, these are cost that you do not get back regardless of the outcome of the litigation. 80% of the costs to try a case come in the discovery phase. The discovery phase is the pre-trial period when documents are exchanged, depositions are taken, experts are engaged to do studies, etc. Discovery is essentially the phase where you learn what the other side knows (and vice versa) to be able to value a case. Settling on the court house steps just before or during trial does not eliminate these costs.

The further litigants get into the discovery process, something call “escalation of conflict” occurs. In essence, the more you’ve spent, the more you want to spend to get the outcome you want. Thus, settlements become harder to reach (and most people tell me the later settlements were the same as what they could have had earlier in the process).

How does mediation help? Mediation gets the parties talking to each other in a structured environment, which accelerates the discovery process by getting the information exchange going early. If parties need to verify claims made in the mediation, they can do so before the settlement is finalized.

Feel free to contact me if you would like to discuss further how mediation can help you save money and resolve your lawsuits.

I have previously written about the proposed rules changes by the NJ Supreme court regarding public access to court records here and here. In a nutshell, we have an open and public court system. Most (but not all) records of the court are public but are currently accessible only at the courthouse. Justice Albin was charged with reforming these rules to reflect 21st century issues such as internet access and privacy. As part of the overall rules changes approved by the Supreme Court, most of the recommendations of Albin’s committee were approved and will become effective September 1, 2009 along with other approved changes. The formal rule is 1:38. The modifications are as follows:

Closed or inactive account numbers and information are not considered to be private and thus do not need redaction.

The court may charge a fee to mass redact social security numbers in already existing records.

The obligation to redact confidential personal identifiers from documents submitted to the court applies to litigants and attorneys in all cases — and must certify same.

Financial records of guardians and incapacitated persons shall be confidential and available only to spouses, domestic and civil union partners, and family members of the ward to the third degree of consanguinity. The court thought that making them public would enable exploiting of the most vulnerable in our society.

It is unclear how quickly internet access for court records will occur given the fiscal realities of the state of NJ in 2009 — but the road has been laid out.

What does this mean to you? Your records in the future (including potentially retro-actively) will be far more accessible to anyone who cares to see it. Mediation is a confidential process, whether for a divorce. commercial dispute or family dispute. If you want to keep your information from public view, mediate your divorce or dispute. If you would like to discuss this further, feel free to contact me at 732-963-2299 or via my website.

Former Judge Roy Pearson has lost his bid to have his appeal heard by the entire bank (“en banc”) panel of appelate judges. All 6 of the other judges on the panel refused to hear the case which the other 3 judges unanimously denied. Pearson’s only recourse is to appeal to the US Supreme Court.

In January 2009, the New Jersey state government and courts implemented a foreclosure mediation program to help both homeowners and banks resolve outstanding balances on home mortgages. A homeowner can ask the court to be entered into the voluntary mediation program at any time during the foreclosure process. At that point, the foreclosure case will be stayed pending the mediation. The home owner will be required to meet with a HUD-approved counselor, essentially to determine what the homeowner can afford in regards to a potentially modified mortgage loan. After that happens, the court will schedule a date for a mediation between the homeowner and the bank. The mediations are held at the courthouse. Both the counselor and mediator are compensated by a fund established by the state of NJ.

In essence, as I’ve explained before, the bank does not want your home. In most cases, the balance of the loan is more than the value of the house and the bank does not want to own a home in a bad real estate market. While holding the home, they have to pay property taxes, etc. They would rather settle — if it makes economic sense — than foreclose. Loans can be modified in a number of ways (change of the balance due/prinicpal amount, payment schedule, interest rate, type of loan, etc.), all of which the counselor can assist the homeowner with. The counselor is also required to be at the mediator to help the homeowner during negotiations. The state and federal government as well as the FDIC, Freddie Mac and Ginnie Mae all have programs to help homeowners.

Please keep in mind that this is not a panacea. Some mortgage loans have been resold and repackaged making modifications difficult or impossible. Some homeowners, even after the numbers are run, simply cannot afford the home they are living in. In the latter case, the mortgage company may pay you to leave the home without an expensive legal battle to have you evicted.

The NJ courts have published a foreclosure resource guide (opens in new window) to help homeowners navigate a complex system. As I’ve stated before, the worst action you can take is to ignore all of the notices you get in the mail — doing nothing will surely lead to the loss of your home. Also, be cautious of people or companies who want to help by transferring title on your home for any purpose. Those are likely scam artists.

The Wall Street Journal has an article today which details some studies about how plaintiffs fare in federal court cases. In a word: badly.

From 1979-2006, plaintiffs prevail in 15% of cases. The average for plaintiffs winning in federal court in all other civil cases is 51%. From 1998-2006, the employment win rate is closer to 10%. This is according to a Harvard Law & Policy Review study to be published (pdf).

As a result, fewer and fewer cases are being filed. From 1999-2007, case filings are down by 40%.

Why is this occurring? A few theories:

Few minorities on the bench

Difficulties in proving job discrimination, which is rarely overt

Companies settle cases quickly which appear to be losers

Greater rate of cases being discharged on motions for summary judgment (12.5% for employment cases versus 3% of contract cases and 1.7% of personal-injury and property-damage suits) or motions to dismiss

Higher standards of proof by judges in employment cases

What’s the takeaway? Non-employment federal cases are essentially 50-50 crap shoots. Federal court employment cases are far more likely to go towards the employer. If you have an employment case, you are likely to fare better by settling the case before trial. It will be far less expensive given the “odds” of winning at trial.

New Jersey has one of the most robust anti-discrimiation laws in the country. Suits with NJ Law Against Discrimiation (LAD) are usually filed in state supreme court. In NJ, it is more likely a discrimiation case will be filed in state court rather than federal court.

LINCOLN — A God who is “all-knowing” should know when he’s being sued, even without being served notice of the lawsuit, said former State Sen. Ernie Chambers of Omaha.

After all, Chambers wrote to the Nebraska Court of Appeals, courts already invoke the Almighty in oaths to witnesses that they tell the truth “so help me God.”

He said it was inconsistent for the Douglas County District Court “to take judicial notice of God in order to administer oaths and to enter an order to dismiss . . . yet simultaneously deny that the all-knowing God has notice of the petition,” Chambers stated in written arguments submitted Monday.

Chambers, an atheist who got a law degree at Creighton University, filed suit against God in 2007.

The purpose, he said, was to uphold citizens’ rights to sue “anyone else, even God.” Chambers said he acted in response to legislation to limit so-called frivolous lawsuits.

Douglas County District Judge Marlon Polk dismissed the lawsuit, saying there was no evidence that God had been served in the case. Polk also said “there can never be service effectuated” on God.

In his appeal, Chambers said not only that God would know he was being sued, but the judge abused his discretion by dismissing the lawsuit “with prejudice,” meaning it cannot be refiled.

Previous Nebraska Supreme Court rulings, he argued, state that if a party is not served within six months the remedy is dismissal “without prejudice,” which means a new lawsuit can be filed.

The Court of Appeals could uphold Polk’s ruling without comment or schedule oral arguments in the case.

The court gave Chambers until Feb. 24 to file a statement of jurisdiction in the case and to show that he had notified Lincoln attorney John DeCamp, who has asked to represent God.

DeCamp, another former state senator, is among a handful of people, from Texas to Sweden, who have filed court documents seeking to be God’s lawyer in the case.

“If they want to go to court, we’re willing to take God’s side,” said DeCamp, who practices law in Lincoln. He said he legally registered “The Church of the Golden Rule” as an entity in Nebraska two decades ago, so he has religious experience.

E.O. Augustsson of Orebro, Sweden, wrote the Appeals Court, asking to intervene on God’s behalf. The court ruled that his letters, which mentioned “Bjorn . . . the omnipresent,” were “frivolous” — a description some have given to Chambers’ lawsuit.

Attorney Eric Perkins of Corpus Christi, Texas, filed a response to Chambers’ lawsuit in Douglas County. Perkins said God “knew the plaintiff, created the plaintiff” but was not “disappointed” by him.

Court documents signed by “God himself” and “Mary” also were filed in the lower court.

How would you like this system of justice? In India, the New Delhi High Court has an estimated 466 YEARS of backlog. Yes, that’s years and it’s not a typo. And that is the backlog on criminal cases alone. The court handles all types of cases, including criminal and civil.

A recent report highlighted the problems the court is having. The court has thousands of cases pending. Over 600 of those cases have pending for over 20 years. And it’s not just from being slow. The average case is heard in four minutes and 55 seconds. India simply does not have enough judges in their system. India has 1.1 Billion people (with a B) and 11 judges per million people. The US in contrast has 110 judges per million people. The court also needs to work more hours per day (currently ringing in at 5.25 hours/day and 213 days/year). Corruption also plays a part, which is pervasive in Indian society in general.

Roy Pearson won’t go away quietly. He is now asking for an en banc hearing of his appeal on the $54 million lawsuit over his lost pants. Previously, 3 appellate judges rejected his appeal and now he wants all 9 judges on the circuit to hear his appeal.